Jersey - Criminal Offences (Jersey) Law 2009 – out of sight but should not be out of mind.

The Criminal Offences (Jersey) Law 2009 is enacted to codify and reform the law relating to statutory offences. Although little is known of this law, or highlighted in any director briefing, all corporate offences should be aware of its effect.

The Criminal Offences (Jersey) Law 2009 [the law], consolidates and modernises the statutory offences in Jersey. The law covers various offences, such as fraud, bribery, corruption, money laundering, insider dealing, market abuse, and environmental crimes. The law imposes criminal liability on directors who fail to prevent or report any of these offences committed by their employees or agents. The penalties for violating the law can include imprisonment, fines, confiscation of assets, and disqualification from holding office.

Here are some key points:

• Offence to aid, abet, counsel, procure, conspire, attempt or incite the commission of a STATUTORY OFFENCE:
  • Aids, abets, counsels or procures the commission of a statutory offence, OR
  • Conspires, attempts or incites another to commit a statutory offence,
• A person who
• Is guilty of an offence and is liable to the same penalty as a person would be for the statutory offence
• STATUTORY OFFENCES by bodies corporate and limited liability partnerships:
  • The consent or connivance of, or to be attributable to neglect on the part of a person who is a director, manager, secretary or other similar officer of the body corporate, or a partner of the partnership; OR
  • A person purporting to act in any such capacity,
• If a statutory offence committed by a body corporate or by a limited liability partnership is proved to have been committed with
• That person is also guilty of the offence and is liable in the same manner as the body corporate or the partnership to the penalty provided for the offence
• This law was adopted by the States on 27th February 2007, sanctioned by Order of Her Majesty in Council on 8th July 2009, and registered by the Royal Court on 24th July 20092.

WHY [read the states assembly debate]

Deputy J.A. Martin of St. Helier of the Chief Minister regarding the Criminal Offences (Jersey) Law 2009:

1. Can the Minister confirm that the Assembly was fully advised when debating P.7/2007 - now enacted as the Criminal Offences (Jersey) Law 2009 –
1. That this law would limit the right to trial by jury in Jersey and,
2. Can he detail which crimes would have been able to have a jury trial before this law was passed and those which will now have to be heard by Jurats?

ANSWER -Senator T.A. Le Sueur (The Chief Minister):

1. This is rather a complex question and I think it would be sensible to take the parts of the question in reverse order.
2. So the short answer to the second part of the question is a charge of importation of a controlled drug, being a statutory offence, would be heard by Jurats, but a charge of conspiracy to import a controlled drug, being a common law offence, would be tried by a jury.
1. That before the Criminal Offences (Jersey) Law came into force, all offences such as conspiracies, attempts or incitements to commit statutory offences, known as inchoate offences, and offences such as aiding, abetting, counselling or procuring a commission of some statutory offences, known as accomplice offences, would have been tried before a jury.
2. Now, those offences are all tried by Jurats in the same way as the principal or completed statutory offence to which they relate because this removed the anomaly that existed whereby completed offences were tried before Jurats but incomplete forms for the same offence were tried before juries. For example,
   1. A charge of importation of a controlled drug, being a statutory offence, would be heard by Jurats,
   2. But a charge of conspiracy to import a controlled drug, being a common law offence, would be tried by a jury.
3. This meant that there was one form of trial for the completed offence and a different form of trial for conspiring, attempting or inciting that offence and that seems anomalous.
3. As to the first part of the question,
1. The 2009 law was approved by this Assembly on 27th February 2007 and as Hansard shows it was approved without a great deal of discussion, although there was a 2-page explanatory note and report accompanying the proposition.[SEE BELOW]
2. So the proposition contained a number of provisions relating to statutory offences and was supported by that report.
3. In the report it said that the mode of trial in respect of any such accomplice or inchoate offence was the same as for the statutory offence which related.
4. It also stated in the report that inchoate and accomplice offences may be charged as offences of customary law, even though the principal offences to which they relate may be statutory offences.
4. As I say, it is very legalistic but a review of Hansard shows that only one question was asked of a rapporteur and no questioning was raised about the methods or mode of trial

SOURCE https://statesassembly.gov.je/assemblyquestions/2009/deputy%20martin%20to%20cm%20re%20rights%20to%20trial%20by%20jury%20in%20jersey.pdf

Report to the Chief Minister –

• Draft Criminal Offences (Jersey) Law 200 [https://www.gov.je/Government/PlanningPerformance/Pages/MinisterialDecisions.aspx?showreport=yes&docid=3F9D4084-B38B-4915-826A-7BA6DC0094D3]

10th January 2007 – REPORT

1. The distinction between crimes and délits is an antiquated legal function that has become functionally obsolete since the Criminal Procedure (Prescription of Offences) (Jersey) Law 1999.[1]
2. The provisions in the draft law will help to clarify some basic principles relating to criminal law in Jersey.
3. Especially in relation to the law relating to attempt, conspiracy and incitement, the new law will help to resolve any doubt that there might be about the ability to charge persons with attempt, conspiracy and incitement when they are concomitant with statutory offences. This is of particular relevance to financial crime.
4. The purpose of this draft Law is fivefold:-

i. To abolish the distinction between crimes and délits;

ii. To clarify the law relating to attempt;

iii. To codify the law relating to conspiracy and incitement;

iv. To codify the law on aiding, abetting, counselling or procuring the commission of an offence;

v. To codify the law on criminal liability of persons whose consent, connivance or negligence is responsible for offences committed by bodies corporate or by limited liability partnerships.

5. Abolition of the distinction between crimes and délits

1. Both crimes and délits are customary law offences. The distinction between the two is simple but blurred: crimes are the more serious offences; délits the less serious. The distinction between the two has its roots in what was known as the cause en adjonction.
2. This was an action in respect of a délit (the word “délit” being used in its civil sense of delict or tort) in which the Attorney General was joined in the proceedings, thus enabling the Royal Court in the same proceedings to award civil damages and impose a fine or other penalty[2]. Thus the civil and criminal elements in, for example, a common assault, were fused.
3. However, in the case of a grave and criminal assault (assaut grave et criminel)[3] there was an outright prosecution at the instance of the Attorney General.
4. With the emergence of a more formal police force in the nineteenth century, délits came to be regarded as simple criminal offences, analogous to misdemeanours, and prosecuted independently of civil delictual proceedings. However, one important civil feature still attached to délits: prescription.
5. A prosecution in respect of a délit had to be brought within a year and a day. This mirrored the prescription period in civil proceedings for a tort. The Law Reform (Miscellaneous Provisions) (Jersey) Law, 1960, extended the prescription period in respect of civil tort to three years. The Law Reform (Miscellaneous Provisions) (Jersey) Law, 1978, followed suit and increased the prescription period in relation to délits to three years.
6. The position was, however, transformed by Article 2 of the Criminal Procedure (Prescription of Offences) (Jersey) Law 1999 which abolished prescription in respect of offences whether customary or statutory.
7. Even though Article 1 of that Law (as it had to) made the distinction between a crime and a délit, that Law effectively rendered the distinction otiose and opened the way for the States to enact a provision to the effect that the distinction at customary law between a crime and a délit be abolished[4].
8. Article 2 of the draft Law would therefore provide that délits for all legal purposes be merged with crimes.

6. The law of attempt

1. At customary law, it is an offence to attempt to commit a customary law offence. It is generally accepted that an attempt to commit a crime itself ranks as a crime; and an attempt to commit a délit itself ranks as a délit.
2. The position in relation to attempt to commit a statutory offence (une contravention) is less certain. There are differing legal opinions as to whether or not there exists at customary law a general offence of attempt to commit a contravention.
3. Historically, under the law of England and Wales, it was an offence to attempt to commit a statutory offence. However, statutory offences in that jurisdiction were generally expressed in the statute creating them to be either felonies or misdemeanours, both of which were offences at English common law.
4. If there were an offence at Jersey customary law of attempting to commit a contravention, there would generally be a right of trial by jury in respect of the alleged attempt. Still, there would be no right of trial by jury in respect of the principal offence. It would also be difficult, if not impossible, to determine in any given case whether an attempt at a contravention ranked as a crime or a délit.
5. Articles 3 and 4 of the draft Law would clarify once and for all the legal position (including that which pertains when there is an attempt within the Island to commit an offence outside the Island).

7. The law relating to conspiracy

1. Frequently, in practice, persons have been indicted on counts of conspiracy[5] and reference to complot is to be found in statute[6]. But exactly what constitutes conspiracy in Jersey law has never authoritatively been determined. The assumption is that the Royal Court would be guided more by contemporary English authorities than by Norman or contemporary French law. But that is only an assumption.
2. Article 5 of the draft Law would set out the elements of the offence of conspiracy to commit an offence (see the draftsman’s explanatory note for further detail).

8. The Law relating to soliciting or inciting an offence

1. Again, persons have been charged with incitement or soliciting[7], however, as with conspiracy, what precisely constitutes such an offence remains, to some extent, a matter of conjecture.
2. Article 6 of the draft Law would clarify the law (see the draftsman’s explanatory note for further detail).

9. Aiders and abettors

3. The offence of aiding and abetting a customary law offence is well established. What is less clear, however, is whether it is an offence to aid and abet the commission of a statutory offence (a contravention) if the statute has not made express provision to the effect that aiding and abetting that particular offence shall, itself, rank as an offence.
4. Article 9 of the draft Law would put the matter beyond doubt.

10. Offences by bodies corporate and limited liability partnerships

1. This is not a matter of customary law, but of statute.
2. As the draftsman’s explanatory note makes clear, Article 10 would make a provision of general application which would avoid the need to make separate provision in each individual statute in this regard.

11. Offences committed outside Jersey

1. There is little or no guidance at the moment as to whether criminal liability attaches to acts done in the Island in contemplation of an offence to be committed outside the Island.
2. The draftsman’s explanatory note in respect of Article 11 goes into detail about the provisions that the draft Law would make in this respect. It is unnecessary to repeat that detail in this Report.

12. Miscellaneous

1. The draft Law would go on to make certain consequential provisions including an amendment of the Privileges and Immunities (Diplomatic, Consular, etc.) (Jersey) Law 1998 resulting from the codification provisions in the Law (see Articles 12 and 13).

13. Conclusion

1. The provisions of this draft Law are an important step forward in clarifying and codifying some of the most basic principles of the criminal law of Jersey.
2. Especially in relation to the law relating to attempt and to conspiracy and incitement, it is important to resolve any doubt there might be about the ability to charge persons with those offences when they are concomitant with statutory offences. This is of particular relevance to financial crime.
3. There are no financial or manpower implications for the States arising from the draft Law.

NOTES

• [1] Only one statute depends on the distinction and this would be amended by the draft law without any loss of function. (see p.2 of the accompanying report).
• [2] There was apparently no discretion in the Attorney General to prosecute if the victim did not complain; see Le Geyt Privilèges, Loix et Coutumes de l’Isle de Jersey, page 85, Article 1
• [3] Note the significance of the word ‘criminel’ indicating that the assault ranks as a crime rather than a délit.
• [4] The only remaining statutory provision which depends upon the distinction between a crime and a délit is Article 7(2)(g) of the Privileges and Immunities (Diplomatic, Consular, etc) (Jersey) Law 1998 which reflects certain requirements of the Vienna Convention on Consular Relations having the force of law in the Bailiwick. That provision would be amended by the draft Law to take account of the abolition of the distinction between a crime and a délit.
• [5] See, for example, AG -v- McLean and Brown (1979) JJ 93 (Court of Appeal).
• [6] See, for example, Article 3 Loi (1884) sur les matières explosives.
• [7] See, for example, Manton -v- Postal Committee (1993) JLR Notes

For more detailed information, you may want to refer to the official documents.

• https://www.jerseylaw.je/laws/current/Pages/08.415.aspx
• https://www.jerseylaw.je/laws/enacted/Pages/L-24-2009.aspx
• https://www.jerseylaw.je/laws/current/PDFs/08.415.pdf